IRS Form 8940 for Miscellaneous Determination Requests

The IRS has released a new form, Form 8940, for 501(c)(3) organizations seeking IRS approvals or determinations regarding the following 9 activities and events:

1. Advance approval of certain set-asides described in IRC section 4942(g)(2)
2. Advance approval of voter registration activities described in IRC section 4945(f)
3. Advance approval of scholarship procedures described in IRC section 4945(g)
4. Exemption from Form 990 filing requirements*
5. Advance approval that a potential grant or contribution constitutes an “unusual grant”
6. Change in Type (or initial determination of Type) of a section 509(a)(3) organization [supporting organization]
7. Reclassification of foundation status, including a voluntary request from a public charity for private foundation status*
8. Termination of private foundation status under IRC section 507(b)(1)(B)—advance ruling request
9. Termination of private foundation status under IRC section 507(b)(1)(B)—60-month period ended 

* The Instructions for Form 8940 provide tables describing Exemptions from Form 990 Filing Requirements and Reclassifications of Foundation Status and the documentation support required for either request.

Bryan Cave LLP partner Keith Kehrer offerred the following commentary on the firm's site: 

Although Form 8940 is a step in the right direction, it does not go far enough.  As I indicated in my prior post, there currenly is no process for a tax-exempt organization to seek IRS approval of expanded or changed activities.  Form 8940 should be revised to include a new Type of Request, “Notice of Material Change in Activities,” that will allow tax-exempt organizations, in their sole discretion, to file a notice of such changes and request an updated determination letter that such activities do not jeopardize the charity’s exempt status.

Perhaps the IRS believed that the costs of reviewing the types of material changes in activities that would likely be disclosed (e.g., close calls with respect to consistency with IRC 501(c)(3)) would be too high under this format and better handled through much more expensive private letter rulings.  It will be interesting to see if Mr. Kehrer's request gets any traction.

The 2011 user fees associated with the Form 8940 requests may be found in Rev. Proc. 2011-8 (p. 245).